From the House to the Courts

It was recently announced that thirteen attorney generals, led by the AG from Florida, will file suit to attempt to overthrow the recently signed health care bill.

At least in my home state of Washington it has been interesting to see a heated debate emerge between our conservative attorney general Rob McKenna, and our liberal governor Christine Gregoire, who has threatened him with legal action if he continues to participate in this suit.

According to the suit, the bill violates:

-Article I of the Constitution (powers given to Congress) and the 10th amendment by mandating coverage, and by creating what they see as a direct tax, which are not allowed.
-10th amendment by making Medicare mandatory and excluding state say in the matter

Will this suit be successful? The general consensus among experts is "no". For one, the Supreme Court has previously upheld the Commerce Clause of the Constitution numerous times before in recent, which allows Congress to regulate interstate business and commerce. According to the Dean of the UC Irvine Law School, Dr. Ewin Chemerinsky,““there is no case law, post 1937, that would support an individual’s right not to buy health care if the government wants to mandate it...and if the court stays true to its Commerce Clause jurisprudence of the last 15 years, I think [the health care bill] will be upheld.”

The suit also claims that the mandate involves a direct tax. The direct tax rules are fairly complicated, but from what I understand there are many more regulations to direct taxes that would somewhat invalidate the bill. The mandate is actually an excise tax, which is a tax on events so to speak. Congress can raise taxes as long as it is proves it is for general welfare, and it is generally seen that this would be proven.

Yet according to Randy Barnett of the Washington Post, the bill more or less requires that citizens enter into a contract with the private government just by being alive, which is unprecedented.

It seems very unlikely that the Supreme Court would overturn the biggest Democratic legislative victory in 30+ years, and it's not common (has it even ever happened?) that they would strike down such an important and partisan bill. But as Randy Barnett recalls, Bush v. Gore, a high profile and highly partisan case (probably the highest profile possible) was decided by five justices. The conservative majority in the Supreme Court still stands. Even though they're supposed to be nonpartisan, I can't help but feel that a general conservative vs. liberal outlook on life could affect their decision.

Further info:

http://healthcarereform.nejm.org/?p=2764&query=home
http://blogs.findlaw.com/courtside/2010/03/healthcare-lawsuit-by-state-ags-attacks-health-insurance-law.html?DCMP=ESPcons_breakingdocs
http://www.theatlantic.com/politics/archive/2010/03/now-political-fodder-for-the-courts/37862/